Case Study Title Ix Court

On Monday a federal court ruled on various preliminary motions aimed to limit the scope of ongoing litigation against Saint Cloud State University in Minnesota, which was sued by female athletes over its decision to eliminate two women’s teams in 2016. The plaintiffs claim that even though the university cut four men’s teams at the same time, the elimination of women’s tennis and nordic skiing violate Title IX because the university failed and continues to fail to provide athletic opportunities in proportion to women’s enrollment. Though Title IX provides alternatives to proportionality compliance, neither of them is satisfied when a university cuts viable teams of the underrepresented sex. The lawsuit also challenges inequitable distribution of scholarship dollars and access to facilities and equipment.

One issue that the court addressed this week was the plaintiffs’ decision to pursue this litigation as a class action. The class action is an important litigation strategy to plaintiffs in Title IX athletics cases because without it, lawsuits are vulnerable to dismissal for lack of standing after the plaintiffs graduate. Here, the court agreed to certify the class over some objections by the university, but it did modify the description of the class to ensure it wasn’t overly broad. Now, the class of plaintiffs include “all present, prospective, and future students at Saint Cloud State who are harmed by and want to end sex discrimination in the allocation of athletic opportunities, the allocation of athletic financial assistance, and the allocation of benefits provided to varsity athletes.” The italicized language was added by the court, which used as a model a similarly-defined class that was certified in the Quinnipiac case.

More significantly, the court narrowed the scope of the plaintiff’s case by granting the university’s motion to dismiss the plaintiffs’ claims for money damages arising from the alleged discrimination in the allocation of athletic scholarships. Title IX is a spending clause statute, expressly requiring that universities refrain from sex discrimination as a condition for federal funding. Though the Court has permitted private lawsuits to seek money damages from institutions that violate Title IX, the plaintiffs in such cases must prove that the institution engaged in intentional discrimination. Decisions that reflect official university policy are intentional, as are unofficial decisions that the university fails to remedy despite being on notice of the fact that they are discriminatory. Here, the court agreed with Saint Cloud State that the university’s allocation of athletic scholarships was not official university policy; nor did university officials have notice of the fact that the harm to plaintiffs resulting from the alleged discriminatory allocation. This conclusion, which the court supports by citing a 2001 Eighth Circuit decision called Grandson v. University of Minnesota, is concerning to me (and I’ve criticized its application in other cases as well.). An athletic department is strategic and intentional about how many scholarships to offer. In this case especially, the plaintiffs allege that the disparity in scholarships results from the athletic department’s decision to include too few women’s sports in the tiers that receive full scholarship support. The decision to tier one’s athletic offerings is surely an official decision, isn’t it?

The court also granted the university’s motion to dismiss the plaintiffs’ Equal Protection claim on the grounds that the state has not waived its sovereign immunity to be sued for violations of the 14th Amendment.

Lastly, the court addressed the scope of testimony of the plaintiff’s expert witness, Dr. Donna Lopiano. Lopiano, a former athletic director and advocate who currently serves as gender equity consultant. Here, the court agreed with the university’s argument that the law prohibits expert witnesses to testify about legal requirements or to provide legal conclusions. Yet, the court ruled that Dr. Lopiano is permitted to testify about her own findings about the university’s compliance with equal opportunity, equal treatment, and scholarship provisions of Title IX, as well as Title IX compliance at other institutions.

Often, the conversation about how colleges enforce Title IX with regard to sexual assault and harassment allegations quickly devolves into standard political muck-throwing — squabbles about whether liberals are too easily triggered, or why conservatives care so little about sexual assault victims, and so on. That’s unfortunate, because by now there is an abundance of evidence that the manner in which many schools and universities are enforcing the law is deeply broken.

The scholar Laura Kipnis’s 2015 essay, “My Title IX Inquisition,” should have made that clear — Kipnis, the controversy over her subsequent book notwithstanding, dealt with an incredibly opaque, Kafkaesque disciplinary process after a student claimed that an essay she had written had created a hostile environment for her. The problem isn’t exactly the law itself, but rather the guidance the Barack Obama administration gave to schools about how to enforce it. To make a long and complicated story short, schools were instructed, under penalty of potentially losing federal funds, to take a very aggressive approach to investigating alleged assaults and harassment, and were told to adopt a significantly lower evidentiary threshold than what is used in criminal and civil proceedings.

Kipnis’s case was far from the only example of the government’s enforcement guidelines producing deeply weird and troubling unintended consequences. On many campuses, Title IX bureaucracies have quickly grown bloated, and as a rule bloated bureaucracies work to to justify their existence, so it’s perhaps unsurprising that many universities spend huge amounts of time and energy “investigating” things that a reasonable person, given the facts, would conclude did not warrant an in-depth investigation.

The organization the Foundation for Individual Rights in Education does a good job tracking these cases, and many of them would be hilarious if they didn’t involve real damage to real people’s academic or professional careers. In one instance, a student was hit with five conduct charges for jokingly yelling “I hit it first” from a balcony at a couple she didn’t know; in another, a law professor was punished, following a 16-month investigation, because an exam question he wrote involving a bikini wax was deemed to have created an unsafe environment after a student “allegedly believed the question’s premise somehow required her to reveal to the class whether she’d had a Brazilian wax,” according to FIRE.

The latest case to garner significant attention, though, is in some ways the weirdest of them all. It involves USC football kicker Matt Boermeester, who has been the subject of a Title IX investigation as a result of allegations he assaulted his girlfriend, USC tennis player Zoe Katz.A Los Angeles Timesreport by Zach Helfand from last week, drawing heavily on a statement Katz’s attorney sent the paper, explains what happened: It started in February, when a neighbor saw Boermeester shove Katz during what Katz has said was playful roughhousing between the two athletes. “The neighbor told his roommate, who told a coach in USC’s athletic department that Boermeester was abusing Katz,” writes Helfand. “The coach then reported the incident to the Title IX office.”

At that point, the bureaucracy kicked in and things got weird, according to Katz:

Katz said she was summoned to a mandatory meeting with Title IX officials, where she told investigators that the two were playing around. Katz was subsequently told that she “must be afraid of Matt,” she said. She told officials she was not. Boermeester has not been arrested or charged with a crime.

“When I told the truth about Matt, in repeated interrogations, I was stereotyped and was told I must be a ‘battered’ woman, and that made me feel demeaned and absurdly profiled,” Katz said. “I understand that domestic violence is a terrible problem, but in no way does that apply to Matt and me.”

Katz said that she has “never been abused, assaulted or otherwise mistreated by Matt.”

USC and its athletic department decided to ignore Katz’s assurance that she was not, in fact, a victim, and Boermeester “was suspended from USC, then barred from campus and from meeting with USC’s athletic trainers or members of the football team,” or with Katz herself. “In the statement,” notes Helfand, “Katz said she is coming forward now to clear Boermeester’s name and lobby for change in the Title IX office’s investigative procedures.”

Now, there are of course situations in which abuse victims fail to realize they are being abused, are coerced into silence, and so forth. But at a certain point, if an adult woman states repeatedly and consistently that there has been a misunderstanding and she does not feel endangered by her boyfriend, the common feminist refrain Listen to women should apply as it would in any other situation involving an alleged assault. Katz wasn’t listened to, and as a result, she said in the statement, she feels “misled, harassed, threatened and discriminated against” by her own school’s Title IX investigators.

Setting aside the very real harm done to Katz and Boermeester here, it shouldn’t come as a shock that political conservatives feast on these cases to score points in the broader culture war. “The war on men on college campuses rages on …” intoned the subhed of the Daily Wire’s coverage. But these cases aren’t really about ideology, per se. Rather, they’re the predictable result of the past administration’s guidance, which put schools in a position where they quite reasonably inferred that if they didn’t pursue even questionable or flimsy cases aggressively, they risked running afoul of the government. Big, risk-averse, corporate-style bureaucracies created to handle what is perceived as a crisis are not going to make sage decisions about this sort of thing, and the confusing federal-enforcement climate has only exacerbated the problem. Things are so tangled that at one point in 2016, the Justice Department told universities that in some cases they could be in Title IX violation if they didn’t investigate certain types of constitutionally protected speech (courts have ruled that public but not private universities need to adhere to the First Amendment in their dealings with students). If universities are simultaneously being told by the government they need to respect students’ free speech, but also that they need to investigate protected speech in other instances, something is seriously wrong.

The Obama guidelines came from a place of genuine concern: It is important that anyone making an accusation of sexual assault or harassment be taken seriously and have their rights protected, and there have been an endless number of nightmare situations, both on-campus and off-, in which victims haven’t gotten the justice they deserved. But what’s going on with Title IX at the moment clearly isn’t working, and it shouldn’t take an example as crazy as USC forcing one of its students to be a victim to make people realize that.